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CORONAVIRUS IN THE WORKPLACE

More than any event in recent history, the coronavirus has permeated all aspects of our lives.  It has had a particularly dramatic impact in the workplace.  While many are staying home under lockdown, those deemed to work in “essential industries” risk their lives on a daily basis.  The State of California has taken many steps to protect workers during this unprecedented crisis.   Whether you have contracted COVID-19, been exposed to it, or been pressured to work in an unsafe or illegal work environment you may have recourse.  If you have been affected physically or psychologically by the coronavirus you may be protected by the Workers’ Compensation system.  If you are being pressured by your employer to work in violation of the lockdown, or if you are permitted to work but are being placed in an unsafe working environment without the proper equipment there are numerous employment laws in place to protect you.

WORKERS COMPENSATION CLAIMS RELATING TO THE CORONAVIRUS

Until recently, proving that you had been infected by the coronavirus at work would have been a difficult task.  Given how infectious the coronavirus is and how widespread it has become, proving that you contracted the virus at work would be an uphill battle.  However, on May 6, 2020, California Governor Gavin Newsom issued Executive Order N-62-20, which created a rebuttable presumption that an employee’s COVID-19-related illness arose in the course of employment for purposes of obtaining workers’ compensation benefits.

In order for the rebuttable presumption to apply, you must have been diagnosed with COVID-19 or tested positive for it within 14 days after working for your employer.  As of now, it only applies to injuries sustained between March 19, 2020, and July 5, 2020.  Additionally, if the employee was originally diagnosed with COVID-19 but not tested, the diagnosis must have been performed by a licensed physician and the diagnosis must be confirmed by further testing within 30 days.

The coronavirus has caused emotional trauma on an unprecedented scale.  If you have been exposed to the coronavirus or have suffered emotional distress as a result of working in a job that potentially exposes you to the virus you may have a stress based or psychological injury.  California treats physical and psychological injuries essentially the same, save for a few additional requirements to pursue a stress based claims.  In order to prevail on psychological claim the employee must prove that  (1) they worked for the employer for at least six months, (2) that worked based stress was the main cause of stress in their life, and (3) that the stress was not the result of a good faith personnel action.  Employees who can satisfy these three requirements are entitled to the same benefits for a psychological injury as are available to employees who are physically injured.  If you have suffered a psychological injury due to exposure or possible exposure to the coronavirus you may have the basis for a workers’ compensation claim.

EMPLOYMENT CLAIMS AS A RESULT OF THE CORONAVIRUS

California has some of the most extensive and progressive laws in the nation to protect employees.  This is also true when it comes to laws protecting employees from unscrupulous business practices during the coronavirus pandemic.  If you are being forced to work in violation of the shelter in place orders passed by the State of California, or are working in an “essential industry” but are not being provided the proper safety equipment, you may have recourse under the Fair Employment and Housing Act (“FEHA”), Fair Labor Standards Act (“FLSA”), Family and Medical Leave Act (“FMLA”), or the Occupational Health and Safety Act (“OSHA”).

If you have been physically or emotionally affected by the coronavirus, or if your employer is pressuring you to work in an unsafe working environment contact the Law Offices of Bob Nehoray for a free consultation to explore your rights.

As communities mobilize to preserve public health in light of the coronavirus (COVID-19) outbreak, you may have concerns about how to remain protected legally. Regardless of whether the virus has affected anyone in your local area, now is a good time to make sure that you have these critical legal documents in place, in the event that COVID-19 or any other unexpected illness impacts you or your loved ones.

What legal documents should I prepare during a global health emergency?

When a global health emergency hits home, many people are caught off guard because they don’t have the legal authority needed to step in and care for loved ones. Among the legal documents that may be needed are:

• Last Will and Testament
• Living Will
• Healthcare Power of Attorney
• Child Care Authorization
• Durable General Power of Attorney

Do I need a Last Will and Testament?

Every adult should have at least a basic Last Will and Testament in place at all times. When a global health emergency is looming, it should remind all of us to create a Will if we don’t have one or to review and revise an existing Will. Along with ensuring that your wishes will be honored after you are gone, a Will provides the only official opportunity you have to nominate a Guardian for your minor children in the event one is needed.

What is an Advance Directive?

An Advance Directive is a legal document that allows you to express your wishes regarding medical treatment to ensure those wishes are carried out should you be unable to communicate them to a doctor at a later date or that allows you to appoint an Agent to make healthcare decisions for you. Since state law governs advance directives, the type of advance directives that are recognized, the decisions that can be made, and the language required to make one may vary from state to state. Most states recognize at least two types of advance directives: a Healthcare Power of Attorney and a Living Will.

If you are a parent of adult children, consider getting these documents in place for your kids, especially if they live far away from home (as in college or studying abroad). As an Agent for your adult child, you will be able to get information from doctors and access medical records in order to make healthcare decisions if your child is unable to communicate or decide for themselves.

What is the difference between a Living Will and a Health Care Power of Attorney?

A Healthcare Power of Attorney allows you to designate someone as your “Agent” to make healthcare decisions for you if you are unable to make them yourself. Typically, your primary doctor must decide that you are unable to understand the nature and consequences of your medical decisions and/or that you are unable to make and communicate your decisions before your Agent’s authority activates.

A Living Will allows you to make your wishes known regarding the medical treatment you specifically wish to accept or reject. In some states, you can include detailed instructions that apply to a wide range of medical decisions that might need to be made on your behalf, including life-prolonging measures and treatment that is intended to relieve pain. Other states limit the decisions that can be made using a Living Will regarding life-sustaining treatments.  

What legal document can help me manage the care of my minor children?

If you are the parent of minor children, you undoubtedly worry about the possibility of an emergency occurring when they are in someone else’s care. This concern is heightened when there is a potential health crisis looming. For many parents in your position, a Child Care Authorization provides the perfect solution. A Child Care Authorization is a legal document that allows you to grant a caregiver the authority to do things such as pick up your children from school or consent to medical treatment for your minor children during the period of time they are with the caregiver. 

How should I manage the care of aging parents?

Millions of adult children provide unpaid care to aging parents in the United States. In light of the threat posed by the new coronavirus, you may be worried about your ability to manage your parents’ care. Of critical importance is ensuring that you have the legal authority to make health care, legal, and personal decisions for your parents if the need arises. If your parents have not already done so, they should execute a Healthcare Power of Attorney naming you as their Agent as well as a Living Will expressing their wishes regarding healthcare treatments and procedures. It may also be wise to have them execute a Durable General Power of Attorney naming you as their Agent so that you can manage their assets and finances if necessary. Making the Power of Attorney durable means that your authority as an Agent remains in effect even if your parent becomes incompetent or incapacitated.

If your parent has an illness such as dementia or Alzheimer’s, and they are already unable to make their own decisions, then they will not be able to name you as an Agent using a Power of Attorney. Instead, you will need to seek a court-appointed Conservatorship in order to be able to make decisions on their behalf.

Watching and waiting for a global health emergency such as the coronavirus to unfold can make you feel helpless. Making sure that you have the legal documents in place to protect yourself and your loved ones if that emergency comes to pass is a great way to take control of the situation and prevent that feeling of helplessness.

Understanding your employer’s time off policies can be confusing. When can you use PTO or paid family leave? If a family member is sick, what options do you have for taking time with income protection? Below, you will find several of the most frequently-asked questions and answers about time off policies for employees.

In light of the challenges that many families may face as a result of the coronavirus crisis, the federal government, alongside several states and municipalities are introducing emergency legislation, including temporary changes to employment law.

What is FMLA?

The Family and Medical Leave Act (FMLA) is a federal law that requires many businesses to give their workers time away from work when the employee or an immediate family member is ill, or for the pregnancy, birth, or adoption of the employee’s child. FMLA requires covered employers to give workers up to 12 weeks of time away from work, and ensures that employees will still have a job to come back to after their leave.

Unless a public health emergency is declared, FMLA does not require covered employers to provide paid time off, although your employer may require you to use some or all of your available sick time or PTO when you take an FMLA leave. FMLA provides for job protection, not income protection.

A “covered employer”, in non-emergency situations, is one that is a private business with at least 50 employees, a public or government agency, a public or private elementary or secondary school.

How has FMLA/paid leave law changed as a result of the coronavirus outbreak? 

The Families First Coronavirus Response Act was passed into law on March 18, 2020. It allows the following emergency protections: 

• Two week of paid sick leave for employees ordered to quarantine, those who are seeking a COVID-19 diagnosis or are already diagnosed, and those caring for someone else who has been diagnosed. Self-quarantine that has not been ordered by a medical professional or by law is not included. That said, this paid leave does apply for parents who are unable to work during their child’s school closures.
• Public-health emergency FMLA leave for parents who are not able to go to work (or telecommute) if their minor child’s school is closed or their child care provider is not available due to a public health emergency in relation to COVID-19. This leave is structured as two weeks of unpaid leave followed by ten weeks of partially-paid leave. 

In order to be eligible for emergency FMLA leave, an employee must have been employed for more than 30 days and their employer must have fewer than 500 employees. That said, some healthcare providers and emergency responders are not included, and small businesses with less than 50 employees may not have to comply if it would create financial hardship. If your employer has less than 25 employees, your FMLA leave may not be job-protected. 

On the contrary, all employers with fewer than 500 employees must offer emergency paid sick leave regardless of tenure. These emergency measures extend from April 2, 2020 to December 31, 2020.

How do I apply for FMLA?

You are not automatically covered under FMLA. If the business you work for is a covered employer under the FMLA, your employer must post a conspicuous notice for employees providing information about how you can apply for leave/file a claim for leave under the Act. If your employer has provided an employee handbook, it may also include information about the company’s FMLA provisions, policies, and procedures.

In general, you should follow normal protocols for requesting time off and provide your employer with as much notice as possible about any time off requests, including leave under the FMLA. If you are not able to provide advance notice, notify your employer as soon as possible. You do not need to specifically state that you want to take FMLA leave, but you should give your employer enough information so they can recognize that the leave could be covered under FMLA. Within five days of your first leave request, your employer is required to notify you whether the time off is covered under FMLA. If the leave is not eligible, you will be told the reason the leave request does not meet the requirements.

How long does FMLA last?

Under the law, FMLA provides for up to 12 weeks away from work every calendar year. The 12 weeks of time off does not need to be consecutive. So, you could take it as needed in shorter increments. Your FMLA leave could also be used intermittently, such as working a reduced schedule.

What is Paid Family Leave?

In some states, including California, New Jersey, Rhode Island, and New York, certain employers are required to provide employees with paid family leave protections that go beyond the FMLA’s protections. This type of leave provides income protection during the employee’s or a covered family member’s serious illness, or for the birth or adoption of the employee’s child. This type of time-off benefit, if required in your state, generally operates as an insurance policy. The minimum length of paid time off varies from state to state, but in general, employees may get from 6 to 12 weeks of partial pay per year.

What is a leave of absence?

Your employer may also give you the option of taking a leave of absence. Personal leaves of absence are not mandated by the law and are up to each employer’s discretion. If your company has a leave of absence policy, they may require you to use up your vacation time or PTO before applying for an unpaid leave.

In contrast to the FMLA or Paid Family Leave laws, you do not need to have a covered reason to take a leave of absence if your employer allows you to do so. But, voluntary leaves of absence are also not guaranteed and do not offer job protection upon return from leave.

How is a leave different from sick days or PTO?

A voluntary leave of absence is not a guaranteed benefit. Your employer could choose to approve or deny your request for an extended period of time away from work. In addition, your leave is likely to be unpaid.

If your employer provides paid sick time or a PTO bank of days that you can use, you generally accrue hours each pay period which you can then use to take paid time off if you become ill (sick time or PTO) or want to take time off for any reason (PTO.)

Enacted in 1993, the Family and Medical Leave Act (FMLA) is designed to protect employees by helping them balance their work responsibilities with family obligations related to medical issues. If you are an employer subject to the FMLA, it is important to understand your obligations and your employees’ rights under the law. 

In light of the coronavirus crisis, the federal government, along with some states and municipalities are taking additional emergency measures, including temporary changes to the law.

Here are a few common questions:

What is FMLA?

Outside of public health emergencies, the FMLA requires covered employers to provide employees with up to 12 weeks of unpaid leave each year, and to guarantee that employer-sponsored group health benefits will be maintained during such leave. FMLA also protects employees by ensuring that taking covered time off will not affect their employment.

How has FMLA/paid leave law changed as a result of the coronavirus outbreak? 

On March 18, 2020, The Families First Coronavirus Response Act was made law. It grants the following protections: 

• Two weeks of paid sick leave for employees ordered to quarantine by a doctor or by federal, state or local mandate. This leave can also be used by employees with COVID-19 symptoms who are seeking a diagnosis, or those caring for someone who is diagnosed. Self-imposed social distancing is not covered, if not ordered by law or a medical professional. That said, this leave does apply for parents who can’t work during their children’s school closures.
• Public-health emergency FMLA leave for parents who are not able to go to work (or telecommute) if their minor child’s school is closed or their child care provider is not available due to a public health emergency related to COVID-19. In most cases this leave guarantees 12 weeks of job protection and is partially-paid after two weeks unpaid, however there are exceptions for small employers.

When it comes to emergency FMLA leave, nearly all employers with under 500 employees are required to comply, however small businesses with less than 50 employees may be able to claim an exemption if the requirement would create a financial hardship for the business. Further, small businesses with fewer than 25 employees may not have to guarantee job protection. Some health care workers and emergency response professionals are also excluded. 

On the other hand, all employers with fewer than 500 employees must temporarily offer emergency paid sick leave regardless of the employee’s tenure. These emergency measures take effect on April 2, 2020 and end on December 31, 2020. Employers must comply within 15 days of the law’s enactment. Tax credits will also be provided.

Am I required to pay employees who miss work due to illness?

In certain states and municipalities, employers must provide employees with paid sick leave. However, outside of the emergency COVID-19 guidelines outlined above, the FMLA normally only requires employers to give employees up to 12 weeks of unpaid time off without the risk of losing their job.

In some cases, employers can require employees to use their available sick time or vacation days to cover some or all of their FMLA leave. This is subject to the employer’s policies around paid time off. If your employees have accrued paid time off, the law allows them to use these hours as income protection during their time away from work.

PTO vs. sick time: What’s the difference?

Paid sick leave provides employees with time off work with pay for illnesses or injuries. In contrast, paid time off (PTO) policies give employees time off for any reason, including vacation, illness, or personal leave. Employers who offer PTO to employees generally don’t also offer separate sick time benefits, as PTO encompasses sick leave.

Employers trying to decide whether to offer separate vacation time and sick time vs. offering PTO may want to consider state law implications of both approaches. In some states, employers must pay terminating employees for any accrued but unused PTO or vacation time, but not sick time.

Am I required to offer paid sick leave?

As of March 19, 2020, 13 states and the District of Columbia have laws in place requiring covered employers to provide paid sick leave for workers. If you have employees in Arizona, California, Connecticut, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont, or the state of Washington, you should understand your state’s requirements. 

As a result of the coronavirus outbreak, you may be required to offer paid sick leave under federal law, as well. A local lawyer can explain which laws apply to your business.

How much sick time am I legally required to offer?

In addition to emergency federal regulations, if your state has enacted mandatory sick leave requirements for employers and your company meets the definition of a covered employer under state law, you should become familiar with your legal obligation. Minimum paid sick leave requirements vary from state to state.

In some states, employers must give workers at least one hour of paid sick time for every 30 hours worked; in other states, the requirement is one hour for every 35 or 40 hours worked. Vermont’s requirement is one hour of paid leave for every 52 hours worked and in the District of Columbia, employers with 1-24 employees must provide one hour for every 87 hours worked.

As a result of the coronavirus crisis, the federal government, along with several states and municipalities are taking emergency legal actions, including making changes to the law. While a new federal law establishes emergency paid sick leave for qualifying employers from April 2 to December 31, 2020, several states have had their own guidelines for years. We’ve put together a guide to the states where such laws have been enacted.

As the news is unfolding rapidly, it is best to talk to a lawyer for the latest advice specific to your situation.

What states currently have paid sick leave laws?

As of March 20, 2020: California, Maryland and Washington state have statewide and local laws regarding paid sick leave. Arizona, Connecticut, Massachusetts, Michigan, New Jersey, Oregon, Rhode Island and Vermont offer statewide laws only. In response to the coronavirus pandemic, New York state has recently enacted a sick leave policy for those affected with coronavirus. Pennsylvania, Illinois, Minnesota, and Texas only offer sick leave policies in select cities, and also Washington D.C. has its own laws regarding paid sick leave. 

What are the laws in each state?

Arizona

• Workers earn 1 hour of leave for every 30 hours worked. 
• Employees begin accruing sick leave on hiring date or July 1, 2017, whichever is later. 
• Employers with 15 or fewer employees must provide 24 hours of paid sick leave each year and those with more than 15 employees must provide 40 hours yearly.

California

• Paid sick leave is required for employees who work 30 or more days within a year from the beginning of employment. 
• All employees including part-time and temporary employees, earn one hour of paid leave for every 30 hours worked. Law applies to employers of all sizes.
• Some cities in California, like San Francisco, have their own sick leave requirements.
• Generally, employers must follow whichever law is more generous to workers.

Connecticut

• Employers with over 50 employees must provide one hour of paid sick leave for every 40 hours worked by an hourly, nonexempt employee up to 40 hours yearly.
• Connecticut sick leave law applies to part-time workers but not temporary workers.

Illinois

• Illinois does not have a statewide sick leave policy, but certain cities and counties in the state offer their own policies.
• In Chicago:
  • Workers who work 80 hours within a 120 day period are covered by the city ordinance. 
  • Every 40 hours worked earns an hour of paid sick leave. 
  • Salaried employees who are exempt from overtime requirements accrue one hour per week of employment.  

Maine

• Currently, Maine has no paid sick leave laws until the “Act Authorizing Earned Employee Leave” takes effect in 2021. 
• The Act will require employers to allow employees to take time off for any reason, not limited to sick leave. 

Maryland

• Employers with 15 or more employees may offer one hour of leave for every 30 hours worked or 40 hours at the start of the year. 
• Employers with less than 14 employees must provide unpaid sick leave. 
• This law is not applicable to workers who work less than 12 hours weekly, work in agriculture, or are defined as independent contractors. 
• Some counties provide their own sick leave policies. 

Massachusetts

• Employers with more than 10 employees have to provide one hour of leave for every 30 hours worked, with a cap of 40 hours. 
• Employers with less than 10 employees must provide the option for unpaid sick leave. 
• Under both scenarios, this time can be used if employees are ill, injured, or need time to attend to a condition for themselves or an immediate family member, including a parent. 

Michigan

• Employees accrue one hour of sick leave for every 35 hours worked, with a maximum of 40 hours per year. 
• Employers can provide all 40 hours at the beginning of the year to avoid carry-over.

Nevada

• Employers with less than 50 employees do not have to provide sick leave. 
• Employers with more than 50 employees must provide 40 hours of sick leave annually, however, if it is during the company’s first two years of operation they are not required to comply. 

New Jersey

• Employees, including full- and part-time, earn one hour of sick leave for every 30 hours worked, capped at 40 hours. 
• Employers can choose to make all 40 hours available at the beginning of the benefit year. 
• The state’s sick leave law preempts any municipal laws regarding the topic.

New York

• Two full weeks of paid sick leave are required for public and private sector workers who are forced into mandatory or cautionary quarantine due to coronavirus. 
• In New York City:
  • Private sector employees of companies with 5 or more employees should by law earn up to 40 hours of paid sick time a year. 
  • Private sector employees in smaller companies should by law receive job protection for up to 40 hours of unpaid sick time a year. 
  • Employees begin earning sick time as soon as they are hired, but have to work for 120 days before they are able to use the time.

Oregon

• Employers with 10 or more employees must provide 1 hour of paid sick leave for every 30 hours worked, with a maximum of 40 hours. 
• Employers with less than 10 employees must provide up to 40 hours of unpaid sick leave annually. 

Rhode Island

• Employers with more than 18 employees must give workers (including full-time, part-time, seasonal, and temporary employees), paid sick leave.
• For every 35 hours worked, one hour of leave is accrued. 
• Employers with less than 18 employees must provide the same amount of leave, but it is unpaid. 

Vermont

• Employees earn one hour of paid sick leave for every 52 hours worked, with an accrual cap is 40 hours. 
• Exempt employees include federal employees, independent contractors, and temporary workers who work under 20 weeks. 

Washington

• Employees earn one hour of paid sick leave for every 40 hours worked. 
• This includes part-time and seasonal employees. 
• If employees do not use all of their accrued hours, employers must carry over balances less than 40 hours. 

Washington D.C. 

• In Washington D.C., paid sick leave time depends on the size of the employer. However, the law covers full-time and part-time employees. 
• Employers with more than 100 employees must provide one hour of sick leave for every 37 hours worked, capped at 7 days annually. 
• Businesses with 25-99 employees must provide one hour of leave for every 43 hours worked, capped at 5 days annually. 
• Small employers who have less than 25 employees must provide one hour for every 87 hours worked, capped at 3 days annually.